Court of Appeal (Qld)|2006-10-20|Before: McPherson, Jerrard and Holmes JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McPherson, Jerrard and Holmes JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT
– COSTS – where litigation between the parties
involved first trial
in which judgment given for the defendants, unsuccessful appeal by plaintiffs to
Source
Original judgment source is linked above.
Catchwords
APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT– COSTS – where litigation between the partiesinvolved first trialin which judgment given for the defendants, unsuccessful appeal by plaintiffs toCourt of Appeal, successfulappeal by plaintiffs to High Court, second trialgiving judgment against defendants, followed by unsuccessful appeal bydefendants– costs to be awarded to parties in relation to first andsecond appeals – whether there should be a reduction of costsawarded toplaintiffs in relation to first appeal because of some unsuccessful arguments– basis upon which costs of firstand second appeals should be assessed– relevance of offer to settle prior to trial – whether indemnitycertificate shouldbe granted under Appeal Costs Fund Act 1973(Qld)Appeal Costs Fund Act 1973 (Qld), s 15(1), s 21Rulesof the Supreme Court (Qld), Order 26 Rule 9 Supreme Court Rules1970 (NSW), Part 51A, Part 52AUniform Civil Procedure Rules
1999 (Qld), Chapter 9, Part 5Australian Horticultural Finance
BARRY THORNTON & HELEN RAE ANDERSON AS PERSONAL REPRESENTATIVES OF CYRIL WILLIAM ANDERSON (DECEASED)
[4]
Judgment in first appeal delivered 27 September 2002
[5]
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
[6]
1.
The respondent defendants to appeal numbers 11475, 11476, 11477, 11478, 11479 and 11480 of 2001 are to pay the appellant plaintiffs' costs of and incidental to those appeals
2.
The respondent defendants are granted indemnity certificates pursuant to s 15 of the Appeals Cost Fund Act1973 (Qld) in respect of their costs of those appeals
3.
The appellant defendants in appeal numbers 7113, 7114, 7115, 7116 and 7117 of 2005 are to pay the respondent plaintiffs' costs of and incidental to those appeals
[7]
APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - COSTS - where litigation between the parties involved first trial in which judgment given for the defendants, unsuccessful appeal by plaintiffs to Court of Appeal, successful appeal by plaintiffs to High Court, second trial giving judgment against defendants, followed by unsuccessful appeal by defendants - costs to be awarded to parties in relation to first and second appeals - whether there should be a reduction of costs awarded to plaintiffs in relation to first appeal because of some unsuccessful arguments - basis upon which costs of first and second appeals should be assessed - relevance of offer to settle prior to trial - whether indemnity certificate should be granted under Appeal Costs Fund Act 1973 (Qld)
D F Jackson QC, with D R Cooper SC and CL Francis, for the appellants
[21]
[1] McPHERSON JA: I agree with the orders that Holmes JA proposes for disposing of the costs in these appeals, and with her Honour's reasons in support of those orders.
[22]
[2] JERRARD JA: I also agree with the orders that Holmes JA has proposed for disposing of the costs in these appeals, and with her reasons.
[23]
[3] HOLMES JA: The plaintiffs have ultimately succeeded in protracted litigation over loan agreements. Their actions against six defendants were first heard in a trial in 2001 in which judgments were given for the defendants. The plaintiffs failed in their appeal to the Court of Appeal the following year, but they were successful on appeal to the High Court, and a re-trial followed. On 7 June 2006, this Court dismissed the appeals of five of the defendants against judgments given against them on the re-trial. What remains for determination are the costs orders in respect of the appeals to this Court decided in 2002 (to which I will refer, collectively, as the "first appeal") and in 2006 (the "second appeal"). The defendants argued that because the plaintiffs had failed on certain issues on the first appeal, they should have only 80 per cent of their costs, while the first plaintiff contended that because of an offer to settle, it should have its costs of both appeals on a solicitor-client basis. The defendants also sought indemnity certificates under the Appeal Costs Fund Act 1973 (Qld) in respect of the first appeal.
[24]
[4] The second plaintiff sued the defendants as lender on written loan agreements with each of them, while the first plaintiff sued as assignee of the second plaintiff's rights under each agreement. The trial commenced in February 2000 and proceeded over a number of days in that month and the following month. After the learned trial judge had reserved his judgment, he was advised that certain documents had not been disclosed. That matter had to be canvassed; in September 2000 an order was made for further disclosure. An unsuccessful appeal against that order followed. Though the disclosure was then made, another application, in relation to a privilege claim, was heard in June 2001 and resolved in the following month. In September 2001, after argument, the trial was re-opened and some further evidence was given. There was argument at that time as to the plaintiff's right to tender documents pursuant to Rule 227(2) of the Uniform Civil Procedure Rules 1999 (Qld). The documents in question were notes of a meeting between a representative of one of the defendants and officers from the Australian Taxation Office, which had been made by an accountant not called to give evidence. The trial judge ruled against the admission of the notes.
[25]
[5] Judgment was delivered in November 2001.[1] The judge found that the loan agreements did not reflect the true agreements between the parties. Instead he accepted the defendants' contention that there was in each case an oral, "operative" agreement under which the second plaintiff's rights of recovery were limited. In addition, he found that since the transfer of funds between the parties amounted only to an adjustment of credit and debit balances between various bank accounts, the requirement of each loan agreement that money be lent was not met. (This became known as the "real money" point.)
[26]
[6] The trial judge rejected a secondary argument by the plaintiffs that if the monies were not lent in accordance with the terms of the loan agreements, the defendants had, with knowledge of that fact, accepted the departure. The defendants' conduct was characterised in alternative ways: as an agreement that the second plaintiff had discharged its obligations; or an affirmation of the loan agreement and the second plaintiff's discharge of its obligations under it; or acquiescence in the second plaintiff's performance of its obligations; or waiver of any entitlement to a different manner of performance. Those issues, about whether there had been agreement, affirmation, acquiescence or waiver were referred to as the "knowledge" issues.
[27]
[7] The plaintiffs appealed. Their grounds were that the trial judge had erred in finding that the defendants had entered into operative, oral agreements with the second plaintiff; in finding that the obligation to lend real money had not been met; in rejecting the plaintiffs' arguments on the knowledge issues; in refusing to admit the meeting notes into evidence under Rule 227; and in finding that a particular individual had acted as the second plaintiff's agent. Part of the plaintiffs' argument was that there was such delay between conclusion of most of the trial evidence and the judgment that the findings of fact ought to be treated with reserve. That submission was rejected by this Court.[2]
[28]
[8] The Court concluded that the trial judge's finding that the written agreements did not represent the real agreements between the parties could not stand. The loan agreements were those executed by the parties. But it held that the trial judge had correctly found that the second plaintiff failed to meet its obligations under those agreements when it did not advance actual funds. The trial judge's conclusion in favour of the defendants on the knowledge issues - that there had been no agreement, affirmation, acquiescence or waiver on their part - was also correct. Thus, the plaintiffs' appeal failed. The costs were reserved, and must now be determined.
[29]
[9] In the High Court,[3] the Court of Appeal's conclusion that the written agreements represented the agreements between the parties was upheld. On the other hand, the High Court held that the various bank transactions by which funds were transferred between the parties had legal effect; it could not be said that the money was not lent. Because there remained issues about whether the plaintiffs had made misleading statements or misrepresentations in order to induce the defendants to enter the agreements and whether the assignment from the second to the first plaintiff was effective, those matters were remitted to the trial judge for further consideration.
[30]
[10] The second trial proceeded on the evidence adduced in the first, with further submissions. In May 2005, the learned trial judge gave judgment,[4] finding that there was no relevant misleading or deceptive conduct or misleading representation. Nor was there any common assumption or intention such to give rise to an estoppel. The assignments of the second plaintiff's rights under the loan agreements were effective. That judgment was upheld on appeal to this Court.[5] The costs of that appeal also fall for determination now.
[31]
The defendants' argument as to costs inter partes
[32]
[11] The defendants conceded that they should pay the costs of the second appeal, assessed on a standard basis. But they argued that the successful plaintiffs should be deprived of 20 per cent of their costs of the first appeal, because of their unsuccessful arguments on three matters: the admissibility of evidence pursuant to Rule 227; the reliability of the trial judge's findings of fact, in light of the delay; and the knowledge issues.
[33]
[12] A similar argument was put to the trial judge in respect of the costs of dealing with the knowledge issues at trial. He, in the course of giving his decision on costs,[6] observed that somewhere between 15 and 20 per cent of the time taken for evidence at the trial was absorbed by those issues. However, he did not accede to the submission that a corresponding deduction should be made from the plaintiffs' costs. He noted that the High Court had alluded to the disputes in this regard and found it unnecessary to resolve them. Regarding the knowledge issues, then, as unresolved, rather than as resolved against the plaintiffs, he considered it inappropriate to decline to award costs in respect of them. The defendants' submission here on the costs of the first appeal invited an extrapolation from the trial judge's conclusion that the knowledge issues absorbed between 15 and 20 per cent of the trial time to a conclusion that 20 per cent of the appeal was concerned with the three matters on which the plaintiffs failed: the knowledge issues, the argument that the trial judge's findings of fact ought be regarded with reserve, and the admissibility of evidence question.
[34]
[13] But what is clear from the decision of the first Court of Appeal is that there were three real heads of controversy: whether the written agreements represented the agreements between the parties; whether the plaintiffs had met their obligation to advance the loan funds under them; and whether the defendants had acquiesced, in any of the various ways incorporated in the knowledge issues, in any departure from that obligation. The question of admissibility of the meeting notes was a relatively minor issue. The argument about the effect of delay on findings of fact was not a distinct issue at all; it was merely an attempt to lend force to the plaintiffs' larger arguments. Neither of those matters assumed such proportions at the appeal as to warrant depriving the successful plaintiffs of any part of their costs. The knowledge issues were significant, and the plaintiffs' failure on them in the Court of Appeal might have warranted some corresponding adjustment on costs, had matters been left there; but the reasoning of the trial judge as to their being ultimately unresolved in the High Court, rather than resolved unfavourably, is compelling. There is no justification for refusing the plaintiffs any percentage of their costs of the first appeal. The question then is the basis on which those costs, and the costs of the second appeal, should be assessed.
[35]
The plaintiffs' arguments on costs inter partes
[36]
[14] The second plaintiff argued only for costs on the standard basis. But the first plaintiff had made an offer before trial to settle each of the actions on terms less favourable to it than the ultimate judgment. On the strength of those offers, made under Order 26, Rule 9 of the Rules of the Supreme Court, it contended that it should have its costs of the respective appeals awarded on a solicitor-client basis. It argued that an Order 26 offer, or indeed an offer made under the equivalent rule in Chapter 9, Part 5 of the Uniform Civil Procedure Rules, had a continuing application to appeal costs.
[37]
[15] The relevant portion of Order 26, Rule 9 was in these terms:
[38]
"(1) Where the plaintiff makes an offer to settle which is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle the Court shall order the defendant to pay the plaintiff's costs fixed on a solicitor and client basis, unless the defendant shows that another order for costs is proper in the circumstances.
(2) Where the defendant makes an offer to settle which is not accepted by the plaintiff and the plaintiff obtains a judgment which is not more favourable to the plaintiff than the offer to settle the Court shall order the defendant to pay the plaintiff's costs, fixed on a party and party basis, up to and including the day of service of the offer to settle and order the plaintiff to pay the defendant's costs, fixed on a party and party basis, after the day of service of the offer to settle unless the plaintiff shows that another order for costs is proper in the circumstances."
[16] In Tamwoy v Solomon[7] the defendant appealed unsuccessfully against the trial judge's apportionment of liability. Before the appeal was heard the plaintiff made an offer, expressed as made under Order 26, to settle the appeal on a basis more favourable to the defendant than the outcome. The Court held that Order 26 had no operation on appeal. Its chief reason for reaching that conclusion was that the balance between Rule 9(1) and Rule 9(2) could not operate in an even-handed way on appeal: a defendant would ordinarily expect to receive his costs on a party and party basis if successful in his appeal, and would achieve nothing more by an offer; whereas a plaintiff could, by an offer, expose the defendant to appeal costs on a solicitor-client basis.
[41]
[17] Ruff v Milton[8] concerned Rule 118 of the District Court Rules, the equivalent of Order 26. In that case, the plaintiff had succeeded on appeal in having the quantum of her damages increased so as to obtain a judgment more favourable than the amount of a pre-trial offer. That meant, of course, that she was entitled to solicitor and client costs of the action. The Court went on to note, however, that in Tamvoy v Solomon the notion that the equivalent to Rule 118 had any application to appeal costs was rejected, and there was nothing in the District Court Rules themselves to suggest that Rule 118 ought to govern costs in the appellate jurisdiction.
[42]
[18] In Tector v FAI General Insurance Company Ltd[9] this Court was considering whether an appellant which had made a Calderbank offer ought to have its costs assessed on an indemnity basis. In the course of its considerations the Court said this:
[43]
"There is no suggestion that the regime governing offers to settle in Chapter 9 Part 5 of the UCPR apply to appeals. That was the conclusion of the Court of Appeal in Tamwoy v Solomon[1995] QCA 447; [1996] 2 Qd. R. 93 in respect of O. 26 of the Rules of the Supreme Court which were replaced by the UCPR and on this point there appears to be no appreciable difference between Chapter 9 Part 5 and O. 26."[10]
[44]
[19] That passage was cited in Deepcliffe Pty Ltd & Anor v Gold Coast City Council & Anor.[11] In that case the plaintiffs had been unsuccessful at trial and had lost an appeal. The defendants had made a pre-trial offer to settle on the basis that the plaintiff discontinued and each side bore their own costs; on the strength of that offer, they sought an order that the appellant plaintiffs pay their costs of the appeal on an indemnity basis. This Court, having set out the passage above, went on to say that the usual rule that costs were assessed on the standard basis should be departed from only where there were some unusual features about the case. The fact that the appellants had failed and there had been an offer to settle was not sufficient reason to order indemnity costs.
[45]
[20] In Grice v State of Queensland[12] the plaintiff had delivered a mandatory final offer under s 39 of the Personal Injuries Proceedings Act2002 (Qld) and obtained judgment for significantly more than its amount. When the defendant appealed, the plaintiff made a further offer to settle. The Court of Appeal observed, referring to Tamwoy v Solomon, Tector and Deepcliffe, that her offer to settle was not made under Chapter 9, Part 5 of the Uniform Civil Procedure Rules.
[46]
[21] The first plaintiff argued that the decisions in Ruff v Milton, Deepcliffe and Grice v State of Queensland should be re-considered, urging that the approach taken by the New South Wales Court of Appeal in Ettingshausen v Australian Consolidated Press Ltd[13] and Fotheringham v Fotheringham (No 2)[14] should be preferred.
[47]
[22] In Ettingshausen, the plaintiff had obtained a verdict for damages well in excess of a pre-trial offer, but it was overturned on appeal. On a second trial, the quantum recovered again exceeded the offer made before the first trial. The question before the Court of Appeal (NSW) was whether the offer of compromise made before the first trial continued in its effect, notwithstanding the verdict, appeal and re-trial. The Court of Appeal held that it did, and the appellant/plaintiff was entitled to have the costs of his claim as litigated through the two trials assessed on an indemnity basis. His costs of the appeal, however, were the subject only of an ordinary order for costs. I do not think that there is anything in that decision which is markedly different from the approach taken in this Court.
[48]
[23] In Fotheringham v Fotheringham (No 2), the appellant succeeded in having the amount he was ordered to pay the respondent reduced from $125,000 to $90,000. However, that amount was still more than the respondent's pre-trial offer; and the latter, with considerable chutzpah, argued that the appellant ought, therefore, to be ordered to pay the costs of the appeal on an indemnity basis, notwithstanding his success. The court proceeded on the basis that the offer of compromise "remained relevant"[15] when costs of the appeal were considered; but it did not follow that its existence dictated an order for costs in the respondent's favour, let alone one on an indemnity basis. The rules included the general rule that costs should follow the event; and the particular rule as to the costs consequences of an offer of compromise remained subject to the court's power to order otherwise. In the ordinary course the fact that an appeal had been upheld would be sufficient reason to justify otherwise ordering. The respondent was ordered to pay the appellant's costs.
[49]
[24] It is worth noting that the rules under consideration in Fotheringham were not on all fours with the Queensland Rules of the Supreme Court. Part 52A of the Supreme Court Rules1970 (NSW) contained the rules as to costs where an offer equal or more favourable than judgment had been refused. Part 51A, which was specifically concerned with Court of Appeal proceedings, provided that the provisions of the other parts applied "so far as applicable, to proceedings in the Court of Appeal". In contrast, in Tamwoy this Court held that a more general provision in the preamble to the Rules of the Supreme Court (Qld), which applied them "to proceedings in the Court in all its jurisdictions", did not indicate an intention to apply Order 26, Rule 9 to the appeal jurisdiction.
[50]
[25] But in any case, I do not think that there is any reason to depart from the line of decisions in this Court to the effect that neither Order 26 Rule 9 nor Chapter 9, Part 5 applies to offers to settle in appeals, either by continuing operation of a pre-trial offer or by the making of a fresh offer after judgment. The logic in Tamwoy holds good in either of those situations: the balance would be skewed were such a regime to apply, because one party (the plaintiff, or the party regarded as in the position of plaintiff) could recover solicitor-clients costs if it bettered its offer, but the other could not. The latter's position would thus be improved not at all by the application of the rule, while the former gained a marked advantage. Nor is there anything in the language of the rules themselves to suggest their application to appeal proceedings.
[51]
[26] The first plaintiff did not point to anything in the conduct of the defendants which would warrant the awarding of costs on an indemnity basis if the Order 26 regime did not apply. The plaintiffs should have their costs paid by the defendants in respect of each of the appeals on the standard basis. Here I should note that one defendant, Edwin Codd, was not a party to the second appeal; the order in respect of him relates, of course, only to the costs of the first appeal.
[52]
The defendants' application for indemnity certificates
[53]
[27] The defendants sought indemnity certificates in respect of the costs of the first appeal, pointing out that they had initially been successful in the Court of Appeal, the judgment of which was overturned by the High Court on the "real money" point.
(1) Where an appeal against the decision of a court -
[56]
on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal."
[57]
The defendants pointed out that the trial judge, in finding in their favour on the real money point, applied this Court's conclusion in Australian Horticultural Finance Pty Ltd v Jekos Holdings Pty Ltd,[16] that lending money entailed its actual delivery; as did the Court itself, on the first appeal. The High Court, over-ruling Jekos, set aside the orders of the Court of Appeal and substituted an order allowing the appeal to the Court of Appeal. The effect of that order, then, is that the appeal against the trial judge's decision to the Court of Appeal succeeded on that question of law.
[58]
[29] Section 21 of the Appeal Costs Fund Act gives this Court a discretion as to the grant of an indemnity certificate. There is considerable force in the argument that Jekos Holdings appeared to govern the position until the High Court's decision. The defendants should be granted indemnity certificates in respect of their costs of the first appeal.
[59]
[30] I would order that the defendants, who were the respondents to appeals numbers 11475, 11476, 11477, 11478, 11479 and 11480 of 2001, pay the appellant plaintiffs' costs of and incidental to those appeals, and that the respondent defendants be granted indemnity certificates pursuant to s 15 of the Appeals Cost Fund Act in respect of their costs of those appeals. The appellant defendants in appeals numbers 7113, 7114, 7115, 7116 and 7117 of 2005, should pay the respondent plaintiffs' costs of and incidental to those appeals.